ADJUDICATION OFFICER RECOMMENDATION

Adjudication Decision Reference: ADJ-00003492

Dispute for Resolution:

Date of Adjudication Hearing: 09/12/2016

Workplace Relations Commission Adjudication Officer: Enda Murphy

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Complainant’s Submission and Presentation:

The Complainant commenced employment with the Respondent as an Engineering Operative (also called a “Shunter”) on 3 June, 1995. The Complainant left his employment with the Respondent in January, 2000 to undertake an apprenticeship and was ultimately re-employed by the Respondent on 13 May, 2000. The Complainant has carried out the same role since his commencement with the Respondent. Since that time, the Complainant has worked night shifts. His role involves preparing buses overnight for use the following day. The Complainant works eight-hour shifts, which involves driving buses internally on the Respondent’s premises for approximately two to three hours. The remaining five to six hours of his shift do not require him to drive a bus.

The Complainant sustained an eye injury (i.e. a detached retina) in July, 2014 and following surgery was diagnosed by the Respondent’s Chief Medical Officer (hereinafter referred to as the “CMO”) as being unfit for work until after he underwent further surgery. The Respondent wrote to the Complainant on 24 November, 2014 and informed him that he would no longer receive sickness benefit as of 16 December, 2014. The Complainant underwent a second operation to his eye on 30 January, 2015 following which he was advised that although his eye had healed well, he had suffered partial sight loss which might be long term. The Complainant attended the Respondent’s CMO on 17 February, 2015 and was informed that he was unfit to drive.

The Complainant submitted that he was subsequently certified medically fit to return to work, albeit that he is unable to perform driving duties. However, he claims that the Respondent has refused to find a suitable alternative role for him but rather has maintained the position that he is unfit for the full range of duties of his grade and that there are no non-driving roles available for him. The Complainant submitted that he had contact with the Respondent (through both his Trade Union and legal representatives) during the period between July, 2015 and September, 2015 in order to try and facilitate his return to work in a role that did not involve the requirement to drive. The complainant submitted that the Respondent made an offer on 21 September, 2015 of a temporary relief position involving administrative/clerical duties. The Complainant submitted that he is a full-time carer for his elderly parents and has worked night shifts since commencing employment with the Respondent. This allows him to care for his parents during the daytime and work at nighttime. The Complainant submitted that the alternative position offered by the Respondent was untenable as he is unavailable to work during daytime hours.    

The Complainant submitted that as a direct result of his disability, he is not being permitted to return to work as he is unable to carry out one specific task (namely driving duties) which constitutes less than one quarter of his duties. The Complainant claims that the Respondent could make arrangements to ensure that the other Engineering Operatives undertake the small percentage of driving duties required with his role which would leave him in a position to undertake the duties central to his role. The Complainant submitted that the Respondent has accommodated two other employees with disabilities, who were employed in similar roles to him, with alternative duties. However, the Complainant claims that the Respondent has failed to take proactive measures to accommodate him in the same way.

The Complainant submitted that he has suffered significant financial loss since his sickness benefit ceased in December 2014 and is desirous to return to work with immediate effect. The complainant is seeking a recommendation under Section 13 of the Industrial Relations Act 1969 in an effort to resolve his workplace dispute with his employer.

Respondent’s Submission and Presentation:

The Respondent submitted that the Complainant has been employed as an Engineering Operative on a continuous basis since May, 2000. The Complainant reported on sick absence from work on 5 August, 2014 as a result of having sustained an eye injury. Following an examination by the Respondent’s CMO in September, 2014, the Complainant was deemed unfit for duty as a result of this eye injury. The Respondent submitted that the Complainant was further reviewed by the CMO in December, 2014 and February, 2015 who advised that he was not to resume duty without prior clearance and that he had a long term medical restriction problem. The Respondent submitted that the CMO also advised at that juncture that the Complainant remained unfit to drive on public roads or in a garage environment and asked if there were any non-driving duties available for him.

The Respondent submitted that the Complainant continues to be certified medically unfit to perform the full range of duties for his grade by the CMO. The Respondent disputes the Complainant’s contention that driving duties are less than one quarter of his overall duties. The Respondent submitted that driving duties represent approx. fifty per cent of the Complainant’s overall duties and that he is no longer capable of performing this part of his role as a result of his disability. The Respondent submitted that all garage staff including Engineering Operatives (i.e. the Complainant’s grade) are required to hold a driving licence (Category D Bus licence). However, the medical requirements to hold such a licence exclude most disabilities including the Complainant’s disability.

The Respondent submitted that it would not be possible to restructure the Complainant’s job by removing the driving requirements from the role as this would render the operation of the night shift (which the Complainant had worked) untenable.  

The Respondent submitted that it has actively engaged with the Complainant and his representatives (both Legal and Trade Union) to try and facilitate his return to work in an alternative position. In this regard, the Complainant was offered an alternative temporary relief position of a clerical/administrative nature in the post room on 21 September, 2015 but he declined this offer as he is not available to work daytime hours. The Respondent submitted that the Complainant’s situation is under constant review and that he will be offered alternative duties that do not involve driving duties should such a position become available in the future. The Respondent submitted that the task of finding an alternative role for the Complainant has been made more difficult by the fact that he is not available for daytime work. However, there is currently no such suitable position available for the Complainant. The Respondent submitted that it has over many years dealt with similar type situations involving staff and has in most cases been able to accommodate employees in temporary alternative roles albeit on a limited and infrequent basis.

The Respondent submitted that under the Company’s agreed Framework for Negotiation and Dispute Resolution Procedures including individual grievance procedures as agreed by the Labour Relations Commission, the Complainant is obliged to have his complaint dealt with through these agreed collective internal procedures for his grade prior to referral of the matter to a third party. The Respondent submitted that the complainant has not exhausted the Company’s internal grievance procedures in relation to this dispute.

Findings and Recommendation:

It was not in dispute between the parties that the Respondent has established internal dispute resolution mechanisms for addressing grievances and disputes of an industrial relations nature (i.e. an agreed Framework for Negotiation and Dispute Resolution which is recognised as a Code of Practice for the resolution of Disputes as provided for in the Code of Practice on Dispute Procedures, as formulated by the Labour Relations Commission). The Complainant did not dispute the fact that he has not exhausted these internal grievance procedures prior to the referral of the present dispute to the Workplace Relations Commission.

It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted. This has clearly not happened in the circumstances of the present dispute.

Accordingly, I recommend that the Complainant exhausts all internal dispute resolution mechanisms for addressing his grievances before considering the further referral of this matter to the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969.

Dated:   23 January 2017